Communicated on 7 November 2016
THIRD SECTION
Application no. 30923/15
Andrey Ravilyevich AKHMETOV against Russia
and 1 other application
(see list appended)
STATEMENT OF FACTS
The applicants are Russian nationals. Their names and dates of birth are set out in the appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Akhmetov v. Russia, application no. 30923/15
The application was lodged on 22 June 2015.
On 1 April 2010 the applicant was appointed to the position of deputy director to an affiliated branch of a State enterprise.
On an unspecified date criminal proceedings were instituted against the applicant on a charge of abuse of authority. He was accused of granting discounts bigger than those permitted in the relevant internal regulations to companies managed by persons under his control. The case was sent for trial on 14 October 2013.
On 22 April 2014 the trial court ordered a comprehensive forensic audit (комплексная судебная финансово-экономическая и бухгалтерская экспертиза). It is unclear from the case file whether the applicant was afforded an opportunity to question the experts carrying out the forensic audit.
The forensic audit was carried out by an expert, Ms M., on 27 September 2014. The expert calculated the aggregate amount of the discounts granted in breach of the internal regulations in monetary terms. However, she concluded that it was not possible to calculate the amount of profit lost as a result of granting those discounts, since the organisation’s profit-and-loss account was missing from the file.
The applicant twice asked the trial court to summon the expert. In particular, he pointed out that it was not clear from her report whether, in the absence of a calculation of lost profit, it was possible to equate the aggregate amount of the discounts granted in breach of the internal regulations (in monetary terms) to the amount of damages caused to the organisation. The trial court dismissed his requests, stating that the expert’s report was sufficiently detailed and clear.
The applicant also asked the trial court to grant him sufficient time to find a “specialist” who would provide explanations on the issue. This request was dismissed on the same grounds.
On 16 October 2014 the Zarechenskiy City Court of the Penza Region convicted the applicant of abuse of authority.
On 30 October 2014 the applicant lodged an appeal complaining, among other things, about the first-instance court’s refusal to summon the expert.
By a judgment of 14 January 2015 the Penza Regional Court upheld the lower court’s verdict, stating that the forensic audit had been ordered and carried out in accordance with the law and that the principles of equality of arms and adversarial proceedings had been respected.
2. Agliullin v. Russia, application no. 43772/15
The application was lodged on 18 August 2015.
On 4 February 2014 the applicant was involved in a traffic accident while driving. A passenger in the second car involved in the accident died as a result of it.
On 13 February 2014 criminal proceedings on a charge of violation of road safety rules were instituted against “unidentified persons”. On the same date the investigator ordered a reconstruction of the accident (судебная автотехническая экспертиза).
An expert examination was carried out by Mr M. on 7 March 2014. The expert concluded that the applicant’s car had collided with another car in the oncoming traffic. Hence the applicant had been in the wrong lane.
On 25 March 2014 the applicant was charged with violation of traffic‑safety rules.
On 9 April 2014 the applicant’s legal counsel asked the investigator to order a new road accident reconstruction (повторная судебная автотехническая экспертиза) and presented a list of questions to the experts. The request was dismissed on the same date. According to the investigator, the expert report of 7 March 2014 provided answers to the majority of the defence’s questions, and the rest of the questions could be answered in the course of the trial.
The trial started on 3 June 2014. At the first hearing the defence asked the court to order a new road accident reconstruction, requested that the expert examination be entrusted to a different expert institution and presented a list of questions to the experts. The request was dismissed; the grounds for its dismissal are unclear from the court records.
On 9 October 2014 the defence brought a specialist (a physicist) to the hearing, and the trial court allowed him to be questioned. The specialist provided calculations to the effect that it was the second car involved in the accident that had driven in the wrong lane.
Later at the same hearing the defence, relying on the specialist’s conclusions, for the second time asked the trial court to order a new road accident reconstruction. The request was again dismissed; the grounds for its dismissal are unclear from the court records.
The defence then asked the trial court to summon the expert for the prosecution, Mr M. They claimed that the expert had drawn up his report in the absence of several key pieces of evidence and raised doubts as to his qualifications. The trial court dismissed the request, stating that the expert report was sufficiently detailed and clear, and that an assessment of the expert’s qualifications was outside the court’s jurisdiction.
On 12 December 2014 the Sarapul District Court of the Udmurt Republic convicted the applicant of violation of traffic-safety rules entailing the death of a person.
The applicant lodged an appeal complaining, among other things, about the first-instance court’s refusal to summon the expert and to order a new road accident reconstruction.
By a judgment of 26 February 2015 the Supreme Court of the Udmurt Republic dismissed the appeal, stating that the initial expert report was sufficiently detailed and clear.
The applicant repeated his complaints in a cassation appeal. On 17 April 2015 the Supreme Court of the Udmurt Republic dismissed the cassation appeal, making reference to the first-instance court’s findings.
B. Relevant domestic law and practice
1. Status of experts and “specialists” in criminal proceedings
The Code of Criminal Procedure of the Russian Federation of 2001 (“the CCrP”) distinguishes between two types of expert witnesses: “experts” proprio sensu and “specialists” (Articles 57 and 58 of CCrP). Their role in the proceedings is sometimes similar, albeit not identical. Under Article 57 of the CCrP the right to order an “expert examination” belongs to the investigator or the trial court. In contrast, the defence may only engage the services of a specialist (Article 53 § 3 and Article 58). Whereas experts are often engaged to carry out complex forensic examinations prior to the trial, a specialist is summoned to help the prosecution or court in handling technical equipment, examining an item of material evidence, understanding the results of expert examinations, assessing the methods employed by the experts, their qualifications, and so on.
Under Article 74 of the CCrP, the reports and testimony of both experts and specialists can be used as evidence in a criminal trial.
Under Article 80 of the CCrP, both experts and specialists can submit written reports to the court and/or testify in person.
On 21 December 2010 the Plenum of the Supreme Court of the Russian Federation issued Ruling no. 28 “on court expert examinations in criminal proceedings”. In that ruling, the Supreme Court clarified that where special scientific, technical, artistic or other knowledge was needed, trial courts must seek an “expert examination”. Specialists may be employed to assist the court in interpreting a written expert report or questioning the expert. The Supreme Court reiterated that the opinions of specialists and experts could be used as evidence, but also emphasised that a specialist could not “conduct a direct examination of physical evidence” or “formulate conclusions but only express an opinion on the questions put to him by the parties”.
2. Handling of expert evidence at the pre-trial stage
Article 195 § 3 of the CCrP stipulates that the investigator must notify the criminal defendant about any decision to order an expert examination.
Pursuant to Article 198 § 1 of the CCrP, the defendant has the right to challenge the expert, request that the examination be entrusted to another expert institution, ask the investigator to put additional questions to the expert, and, with the approval of the investigator, participate in the examination and provide comments to the expert involved.
Article 205 of the CCrP provides that the investigator may, on his own motion or at the request of the criminal defendant or his or her counsel, summon the expert and question him for clarification of the expert report.
Pursuant to Article 206 of the CCrP, the investigator must submit the expert report to the criminal defendant and explain to him or her the right to request an additional or a new expert examination.
Article 207 of the CCrP provides that if the expert report appears insufficient or unclear, or if new questions have arisen, an additional expert examination may be ordered. Should the expert report contain conflicting conclusions, a new expert examination may be ordered.
3. Handling of expert evidence in court proceedings
Article 282 § 1 of the CCrP provides that at the request of one of the parties or on its own motion, the trial court may summon the expert who has provided an expert report at the pre-trial stage, in order for him to explain or extend the conclusions he has made.
Under Article 283 § 1 of the CCrP the trial court may order an expert examination at the request of one of the parties or on its own motion. Parties must be invited to submit questions to the expert in writing.
Article 283 § 4 of the CCrP provides that at the request of one of the parties or on its own motion the trial court may order an additional or a new expert examination.
COMPLAINTS
The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they were unable to examine the experts whose reports had served as prosecution evidence against them.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? Specifically, were the applicants able to examine the experts whose reports served as evidence for the prosecution, as required by Article 6 § 3 (d) of the Convention?
2. Why did the court refuse to summon experts for the prosecution? If they were in fact summoned, what were the reasons for their absence from the trial?
3. Were the applicants’ convictions based solely or to a decisive degree on expert reports?
4. Were the applicants able to put questions to the experts for the prosecution and/or to effectively contest the experts’ reports in accordance with the principles of equality of arms and adversarial proceedings? Specifically, were strong procedural safeguards available to the applicants, counterbalancing their inability to examine the experts for the prosecution in open court? In addressing this issue, the parties are invited to address each of the following questions:
(a) Were the applicants informed about the decisions to order expert examinations? If so, when were they informed? Were the applicants able to put questions to the experts prior to expert examinations?
(b) Did the applicants ask the investigators or the trial courts to order additional or new expert examinations (дополнительная или повторная экспертиза)? If so, were their requests granted?
(c) Did the applicants produce alternative expert evidence in court? If so, was this evidence examined by the trial courts? Were the “specialists” whose services had been engaged by the applicants examined in open court?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Notes
Expert unavailable for examination
30923/15
22/06/2015
Andrey Ravilyevich AKHMETOV
15/03/1966
Penza
Penza Regional Court, 14 January 2015
expert Ms M.
43772/15
18/08/2015
Ayrat Vagizovich AGLIULLIN
25/07/1989
Izhevsk
Supreme Court of the Udmurt Republic, 17 April 2015
expert Mr M.
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